Delhi High Court
Oriental Insurance Co Ltd vs Swami Nath Mishra Decd Thr Lrs & Ors on 19 January, 2016
Author: R. K. Gauba
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19th January, 2016
+ MACA 333/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. R. K. Tiwari, Adv.
versus
SWAMI NATH MISHRA DECD THR LRS & ORS
..... Respondents
Through: Mr.D.P.S. Dagar, Mr. R.P. Nafria
& Mr. Sunil Tomer, Advs. for
LR's of R-1 to 7.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The insurance company is in appeal against the award of
compensation by judgment dated 06.01.2011 of the motor accident
claims tribunal (hereinafter referred to as "the tribunal") on the petition
submitted by Swami Nath Mishra under Section 166 read with Sections
140 of the Motor Vehicle Act, 1988 ("MV Act"), registered as suit
no.139/2010/1995 for injuries suffered by him in a motor vehicular
accident that occurred on 23.09.1994 involving a car bearing registration
no.DIA-956, statedly owned by the ninth respondent herein and driven
by eight respondent herein. The car admittedly was insured with the
appellant company for the relevant period.
2. The grievances raised by the insurance company is to the effect
that even though the evidence adduced on behalf of the claimant showed
that he had suffered 40% permanent disability, the assessment of loss of
earnings has been made assuming disability to be to the extent of 75%.
3. It may be noted here that though the claim petition was filed by
Swami Nath Mishra, he died during the pendency of the proceedings
before the tribunal and was substituted by his legal heirs who prosecuted
the claim petition to the logical end. Before his death, however, Swami
Nath Mishra had appeared as PW1 in support of his claim petition and
having been examined on 14.02.2000, was offered for cross-
examination on 27.09.2000.
4. Indeed, the claimant relied upon certificate of disability (Ex.P-1)
issued on 16.04.2001 by All India Institute of Medical Sciences
affirming that he was a case of post traumatic deformity of right lower
limb and his physically handicap was permanent in nature, assessed to
be of 40% disability in relation to right lower limb. The claimant had
pleaded in the claim petition that he was earning Rs.4500/- per month as
a fruit-seller. In the course of his own statement as PW1, he was silent
on the nature of avocation and only stated that he was earning Rs.150-
200/- per day prior to the accident, without elaborating further. No
further evidence as to the nature of avocation, or as to the manner in
which it was run by the claimant, was adduced. Similar deficiency can
be noted on perusal of affidavit sworn on 19.02.2004 by the claimant
which was submitted as evidence. Noticeably, in the said affidavit, the
claimant had indicated that he was going to the place of his work when
the accident occurred thereby indicating his business to be run from a
fixed place rather than as hawker who would move around with his
wares from locality to locality.
5. Learned tribunal in para no.16 of the impugned judgment
assessed the disability to the extent of 75% reasoning thus :-
"The petitioner has been examined qua his disability by the
AIIMS and as per the original certificate on record, he underwent
40% disability in right lower limb. As has been detailed, the
petitioner was a fruit seller which job of his would have required
his frequent movement along with the rehri to sell fruits from one
place to other. On account of his being suffering from 40%
permanent disability with no chance of progression, the same is
to be assessed at the rate of at least 75%, as the disability in his
lower limb would have resulted in his being immobility and being
confined to only one place for selling the fruits, reducing his
chance of selling and curtailing his earning capacity
predominantly".
6. I agree with the submissions of the learned counsel for the
appellant that in absence of any claim, pleadings or proof that the
claimant was a hawker moving around from place to place, disability
assessed by the medical board could not have been enhanced to the
extent of 75% functional disability. In the given facts and
circumstances, the disability could not have been assessed beyond 40%
as opined by the medical authority.
7. Thus, the appeal is allowed. Having regard to the income
assessed @ Rs.1806/- per month on the multiplier of eight adopted by
the tribunal the loss of income on account of disability, when computed
on the basis of 40% disability works out to Rs.69,350.40/-, rounded off
to a sum of Rs.70,000/-. Adding the compensation awarded under the
heads of the medical bills, loss of actual income, special diet and
conveyance in the sums of Rs.7530/-, Rs.10836/-, Rs.10,000/- and
Rs.10,000/-, the total compensation is calculated at Rs.1,08,366/-,
rounded off Rs.1,08,400/- (Rupees One Lac Eight Thousand Four
Hundred).
8. In above view, the award of compensation is reduced from the
amount of Rs.1,68,398/- as awarded by the tribunal to Rs.1,08,400/-
(Rupees One Lac Eight Thousand Four Hundred), with interest as levied
in the impugned award. The awarded amount, thus, modified will be
apportioned in the manner directed by the tribunal.
9. The appeal is disposed of with above directions.
10. In terms of the order dated 20.04.2011, the appellant/insurance
company had deposited the amount awarded by the tribunal with up-to-
date interest and out of the said deposit 50% was released in favour of
the claimants, the balance kept in fixed deposit account in the name of
the Registrar General of this court with a nationalized bank. The
Registrar General shall work out the balance to be paid to the claimants
in terms of the modified award as above and release the same in terms
of the above directions and refund the remaining to the appellant
company.
11. The statutory deposit, if made, shall be refunded.
R.K. GAUBA
(JUDGE)
JANUARY 19 2016/ssc
